This urgent application turned upon the issue of whether an order of maintenance from the Magistrate Court, that is currently pending review, can be varied, even provisionally, by the High Court through an urgent chamber application.
My immediate legal view was that this was not possible.
However, since the parties were self-actors, and since on the affidavit of urgency, the matter involved a young child who had been sent home for non-payment of fees, as upper guardian, I did set down the matter down for hearing as an urgent application so as to determine more fully the circumstances and nature of the urgency expressed in the affidavit.
However, having heard the parties on the circumstances of the urgency, I declined to grant the order sought by the applicant and dismissed the matter as not urgent.
This judgment captures the full reasons for so holding.
From the applicant's founding affidavit, the basis of her claim was that a child whom she has with the respondent, who is doing Grade One at Cornway College, had been thrown out of school for outstanding payment of fees. Under an existing Maintenance Order, from 2010, the respondent has been paying $150 a month as maintenance and $670 a term as fees. The applicant applied for a variation upward in February 2014 from $150 to $600 for child's upkeep and from $670 to $1,550 for school fees.
She obtained a default judgment in Bulawayo for these amounts on 24 April 2014.
However, on May 19, 2014 (ruling stamped 9 June 2014), this default judgment was rescinded and the Maintenance Court ordered that the maintenance should revert back to $150 for upkeep and $670 for the school fees. The respondent, though, was also ordered to repay a sum of $248 constituting various expenses for settling the child at Cornway College.
The applicant's affidavit of urgency, as well as her founding affidavit, indicated that she had brought the proceedings of the Magistrate Court for review under HC4663/14, which matter was still pending.
The basis of the urgent application brought before me was the insufficiency of the maintenance amount to meet the child's costs and the fact that the child had been thrown out of the school for owing the sum of $1,021 in fees.
The applicant's contention was that the sum of US$670 represented the fees for when the minor was still at pre-school.
What was gleaned from a letter attached from the school, regarding the amount owing to Cornway, where the child is now doing Grade One, was that of the sum owing, $571, was a balance from the 1st term. The fees for the second term was stated as $1,100 and US$650 had been paid thus bringing the total amount outstanding to $1,021.
The applicant's averment was that the respondent, who owns KWMM Investments (Pvt) Ltd, and is said to operate a fleet of 16 haulage trucks, is able to pay. She therefore sought an order couched as follows:
"TERMS OF FINAL ORDER SOUGHT
(i) That you show cause to this Honourable court why a final order should not be made in the following terms.
(ii) That pending the finalisation of case HC4663/14, Respondent be ordered to maintain the minor in terms of Annexure C.
(iii) That Respondent bears the cost of this application.
INTERIM RELIEF GRANTED
Pending determination of this matter there is granted the following relief:
(i) That Respondent is ordered to pay all the school arrears forthwith and to provide $500 for the upkeep of the minor child per month.
(ii) That this provisional order be served upon the Respondent by Sheriff."
There were three primary reasons for my rejecting the matter as urgent once the urgency had been ventilated and the circumstances surrounding it:
(i) The first was that the order of maintenance granted at $150 per month for upkeep and $670 for fees per month remains extant.
(ii) Secondly, the review of the matter by the magistrate, ordering that the maintenance revert to the original amount stated above, is still pending.
(iii) Thirdly, the applicable Constitutional provisions call into play the participation of both parents towards their children's needs. As such, where an order already exists that governs a particular parent's contribution, a matter cannot be rendered urgent by unilaterally upping that party's contribution and subsequently seeking to have that endorsed, when not honoured, by way of an urgent application.
The urgency, under such circumstances, becomes self-created.
The reluctance of higher courts to interfere with proceedings outside a review or an appeal, is one that is captured in a number of decisions.
In Berly-Lynn Surtee v Mohammed Hassin Surtee HH07-08 MAKARAU J stated thus:
“It would appear to me, that, this court has, over the years, adopted the approach, that, where there is an existing order by a competent court of jurisdiction, another court cannot make an order competing with or overriding it even if the court making the original order is inferior to the High Court….,.
The issue is not that the Juvenile Court is an inferior court, but, as pointed out by McNALLY J…,. the courts have to adopt a sensible and practical approach to the matter and avoid dealing with orders that are properly before another court of competent jurisdiction save as is provided for under the procedure of review.”
For further articulation of this rule, that, an order made by a court can only be varied by that court save by way of appeal or review in a higher court, see also Raath v Carikas 1966 (1) SA 756; Kunz v Pretorius 1982 (2) ZLR 24 (HC); Walkinshaw v Walkinshaw 1971 148 (NC).
In light of these legal authorities, I considered that the applicant's quest to bring an urgent application which would in effect vary the maintenance upwards, would, in essence, amount to interfering with an existing order of a court of competent jurisdiction.
To try and reverse maintenance proceedings which are already under review, by way of an urgent chamber application in the High Court, however temporarily or provisionally, would be tantamount to mis-application of inherent powers to simply muscle out decisions of the lower courts.
In the case of Karimatsenga v Tsvangirai & Ors HH369-12 GUVAVA J cited the following dicta, in Nyaguwa v Gwinyai 1981 ZLR 25…, where PITTMAN J stated as follows regarding the need to fully respect the jurisdiction granted a court by statute:
“I was of the opinion, that, in this country, each court is a creature of statute, and its powers are created and defined by statute. If one court were to claim that it has same inherent power to overrule another court instead of a power specifically created by statute, in effect, it would be claiming the power to nullify the body of statute law….,.”
She thus went on to conclude as follows, regarding the overlap of jurisdiction, in the case that was before her:
“Thus, it is clear to me, that, where the legislature has intentionally, and by statute, set out procedures and remedies for certain acts these must be followed. This court cannot invoke its inherent powers to take away powers which have been given to certain persons in an Act of Parliament.”
Besides, maintenance, and its variation, are, by way of enquiry, and cannot be dealt with through an urgent chamber application.
While cognisant of the High Court's role as upper guardian of all minor children, and whilst alive to the principle of the best interests of the child, as vital tenets of our Constitution, these are not principles to be applied in a knee jerk manner.
They certainly cannot be read to mean, that, every order asked for, in the name of urgency and the 'best interests' of the child, should be granted.
They equally do not mean, that, a party can unilaterally create urgency through incurring expenses on behalf of the child, that the parent herself cannot afford, and expect the courts to endorse her actions thereafter in the face of an existing Maintenance Order.
Drawing on relevant provisions of the Constitution, the best interests of the child, in the case before me, mean the child's right to parental care, as articulated in section 81(d) of the Constitution, and the right to education, health care services, nutrition and shelter as found in section 81(f) of the Constitution.
For the sake of clarity, the applicable provisions are worded as follows:
“Section 81 Rights of Children
(1) Every child, that is to say, every boy and girl under the age of eighteen years, has the right –
…,.
…,.
…,.
(d) To family and parental care or to appropriate care when removed from the family environment;
…,.
(f) To education, health care services, nutrition, and shelter;
…,.
…,.
…,.
(2) A child's best interests are paramount in every matter concerning the child.
(3) Children are entitled to adequate protection by the court, in particular, by the High Court as their upper guardian.”
These are part of the fundamental rights granted to the child by our Constitution, and which, in my view, to the Constitutional cohort of what constitutes 'best interests' that are to be embraced in every matter concerning a child as enjoined by section 81(2) of the Constitution.
In my opinion, with a comprehensive articulation of children's rights in the Constitution, when courts are called upon to make decisions which call into play an interpretation of 'best interests' guidance must, of necessity, come from the Constitutional formulation of children's fundamental rights so as to avoid a purely subjective assessment of what comprises those 'best interests' of the child.
In other words, it is not what a parent has put forth that should guide the courts in making a legal decision, but, what our Constitution provides.
It is the rights contained in section 81(a) to (h) of the Constitution, that must, of necessity, inform our understanding as a point of departure of the 'best interests' principle if we are to avoid a situation where the meaning essentially stems from each according to one's own understanding.
In summary, these include the right to be heard; to a name and family name; to family and parental care or appropriate care outside a home environment; to protection from economic and social exploitation; and to education, health and care services, nutrition, and shelter. They further include the right not to be recruited into a militia; not to be forced to take part in any political activity, and the right not be detained save as a measure of last resort.
While these rights canvass a broad range of children's experiences, in addition, children, as full citizens, equally benefit from the provisions of the Constitution as a whole.
In dismissing the application as not urgent, on the basis of the existing Maintenance Order and the pending review, I therefore considered, that, it is both parents, Constitutionally, who have the obligation to provide parental care, and, additionally, who have the responsibility to take care of their children in terms of education, health care, and shelter.
While the State also has specific obligations regarding these rights that centre on the duty to respect, protect, and fulfil the nature of these obligations, are not, in my view, the subject matter of this case, other than the duty to protect which is what courts are called upon to do as an operative arm of the State.
The fundamental focus of the facts before me bring to the fore the obligation of parents, specifically with regard to the rights accorded children.
With parents in mind, there is no suggestion, whether constitutionally or in terms of section 4(d) of the Maintenance Act [Chapter 5:09], that only the father is to contribute to the financial up-keep of a child.
In fact, the opposite is true.
It is both parents who are called upon to play their role.
Support which the mother herself can provide is a matter to be taken into account in determining whether the child is without adequate means of support: see, for example, Thomson v Thomson 1968 (4) SA 270 (RA).
It was for this reason, that, while dismissing the matter as not urgent, for the reasons that I have given, I did seek to, at least, find out from the applicant whether she was able to make up the difference pending the review. After all, her own founding affidavit suggests that the child commenced schooling at Cornway under an existing order where the father was expected to contribute U$670 for fees per term.
It was only in February, after the child had already started school, that the application for variation was sought.
In response to the urgency articulated by the applicant, the respondent said he was unable to provide any more than what the existing Order provides.
I considered it important not to leave the child in the lurch and to at least try to get the parents to find some solution to the predicament facing the child, pending the review, and the possible search for an affordable school.
The applicant's own indications were that she could possibly devote $500 from rentals she receives towards the child returning to school as a matter of urgency pending the outcome of the review. There was also the $248 which she said the court had ordered the respondent to reimburse for monies she said she had expended on uniforms and other sundry expenses on behalf of the minor child.
This, he was willing to pay.
Still this would not be enough, yet, neither parent seemed particularly enthusiastic about devoting the necessary energy towards finding an affordable alternative. Each saw it as something the other should be doing.
Realistically, pending the review, the parties seem to have very little choice other than to live within their means. Realism, in this moment, practically translates to finding a school for their child which both of them can afford.
The court's role, in protecting the best interests of the child, does not translate to a higher court foisting a decision atop of an existing one from the court below through an urgent application.
As emphasised, this court is not in a position to interfere with the order of the court below save by way of review, which is still pending, or by appeal, which is not the subject matter of the case.
The State's role, in giving effect to the right to education, equally does not translate to handing out parental subsidies under these “lifestyle” type of circumstances.
Taking into account the sum total of the above reasons:
(a) I therefore dismissed the application as not urgent.
(b) I made no order as to costs since the parties were both self actors.
